Suspension of Common Element Use Rights

Directors and managers of Florida community associations seem to be on a never-ending search for effective tools to compel unit owners or their tenants and guests to comply with the association’s rules and restrictions. Until not too long ago, Florida condominium association boards had few practical remedies at their disposal to address violations. Of course, the condo associations could file lawsuits or arbitration actions to seek recourse for violations, but the costs of pursuing these cases is a significant deterrent, despite the hope that they will recover attorney’s fees and costs should they prevail. The associations may also impose fines – if their governing documents allow – but deterrents to the implementation of fining as a viable remedy include the caps applicable to such fines and the difficulty of getting individuals to serve on fining committees.

As a result of recent legislative changes to the Condominium Act, associations gained the ability to suspend the rights of an owner, tenant or invitee to use common elements, common facilities or any other association property, in the event that the owner of the unit is delinquent more than 90 days in paying a monetary obligation to the association. Subsequently, as a result of the 2010 legislative session, a condominium association may also suspend, for a reasonable period of time, the right of a unit owner, or a unit owner’s tenant, guest or invitee, to use the common elements, common facilities or any other association property for the failure to comply with any provision of the declaration, the association bylaws or reasonable rules of the association.

As with the imposition of fines, these suspensions may only be imposed if the association provides the owner with at least 14 days’ written notice and an opportunity for a hearing. If applicable, the unit’s occupant, licensee or invitee must also receive such notice. The hearing must be conducted and held before a committee of other unit owners who are neither board members nor persons residing in a board member’s household. If the committee does not agree, then the suspension may not be imposed.

Pool.jpgUnlike suspensions for failure to pay monetary obligations, the wording of the newly adopted changes to the statute does not limit the portions of the common elements, common facilities or association property that may be suspended for the failure to comply with any provision of the declaration, the association bylaws or reasonable rules of the association. This distinction creates the argument that associations may be more aggressive in this type of suspension, to include the suspension of the use of parking spaces, limited common elements, etc. – though conservative practitioners caution that this is not necessarily the case.

Additionally, the success of this type of remedy may depend upon various factors, including whether the community has the ability to enforce the suspension, whether there are community facilities that are worthwhile suspending, and whether there are qualified owners who are willing to serve on the committee that is required to impose the suspension. Lastly, when implementing the suspension, board members should be aware of what the association may be required to do in order to enforce the suspension in the event that the suspended individual defies it.

In light of the implications and procedural considerations related to the suspension of use rights, we encourage board members and managers alike to work closely with their association’s legal counsel in order to determine the best course of action to address violations in their community.